HL Deb 25 May 1965 vol 266 cc820-8

8.20 p.m.

BARONESS SUMMERSKILL rose to ask Her Majesty's Government whether in view of the judgment of this House concerning the deserted wife's "equity" to remain in occupation of the matrimonial home, they will introduce remedial legislation, especially as three of the Law Lords stated that the result was unsatisfactory and required the attention of Parliament. The noble Baroness said: My Lords, I must apologise to your Lordships for keeping the House to this late hour, and particularly to the Lord Chancellor for bringing him back to the Woolsack after he has had such a long day listening to other debates, but I believe the recent decision of the Law Lords to allow the appeal of the National Provincial Bank from the Court of Appeal decision raises a matter of considerable importance, and that is why I feel that it brooks no delay. In fact it ends what has been known as "the deserted wife's equity", namely, the right to remain in occupation of the matrimonial home.

May I remind your Lordships of this case? It was the case of a woman called Mrs. Ainsworth, a married woman with four children, who was deserted by her husband in 1957, since when she has continued to make her home at Milward Road, Hastings—the matrimonial home. In 1961 Mrs. Ainsworth was granted a decree of judicial separation and maintenance for herself and her children on the basis that she remained in occupation of the house rent free. Subsequently the National Provincial Bank advanced about £2,000 on the security of the house to a company, to enable it to discharge the husband's debt to them. In 1962 the Bank called in the debt, stating that in default of payment it would exercise its right as mortgagee. Mrs. Ainsworth resisted this claim on the ground that her husband had deserted her, leaving her in the house. Finally, the case came to your Lordships' House, where a decision was made in favour of the Bank. While the decision of the five learned Judges was unanimous, nevertheless three Law Lords said that the result was unsatisfactory and required the attention of Parliament; and it is for this reason that I have brought the matter to the House to-night.

The decision means now that a husband who deserts his wife can transfer the house to anyone else, including his new mistress, for a large sum or small; and, even though the new owner has full knowledge of all the circumstances, he or she can turn the wife out of the matrimonial home and the court cannot refuse the demand. Then, as soon as the wife is turned out the husband can manage to get the house re-transferred to himself. This possible manipulation of the law recalls to mind Lord Cowper's statement on Equity. He said: The office of Equity is to support and protect the Common Law from shifts and crafty contrivances against the justice of the Law. Equity therefore does not destroy the Law, does not create it, but assists it. My Lords, with all due respect, I feel that this decision to deprive a woman, innocent of any matrimonial offence, and her four children of their home is a triumph of the rights of property over those of equity. In this case the law appears to come down on the side of the least wronged and the least afflicted, the bankers.

In the course of this case great importance has been attached to the property right of the bank which advanced £2,000 on the security of the house. I find it difficult to understand why more importance was not attached to the social needs of the mother of four children who for years had been giving unremitting service to the home and her country—that is, if we acknowledge that children represent, in one sense, the wealth of the nation. She had ben required to be maidservant, laundress, cook and concubine (if I may use the term in its legal sense) to her husband, and nurse and part-time teacher to her children. If we were to assess these services given over the years to the family, and indirectly to the community, in monetary terms we should find their value far in excess of £2,000. I say that the husband and the nation are in debt to the mother, and the repayment of this debt should be given priority. Her contribution to the country has been greater, financially and socially, than the banker's advance.

If the Judiciary should not concern itself with the wider social implications, then my argument falls, but I understand that this is not the case. If this woman fails to bring up her four children on National Assistance, then they may go into care, which is very common. A great majority of children in care by local authorities have parents living. They may go into care at a cost over the years to the taxpayer of an amount far in excess of the bank's demand. Again, if these fatherless children, denied adequate accommodation, become delinquent, then the cost to the State will be far greater than £2,000. Yet it has been deemed right and just to take this mother's greatest necessity, a roof over her head and her children, now that the father has deserted them.

In this country the law denies wives any right to the home and contents which, through their services, they have helped to provide. In Canada and the United States of America the Homestead Laws protect the deserted wife, and in many European countries community of property gives her security. My Lords, the British Law is obsolete and far behind that of smaller countries in making provision for the wife and mother. I should like to ask the Lord Chancellor to-night whether a Private Member's Bill should not be introduced forthwith in order that in future other mothers may not find themselves in the position of this unfortunate woman.

The court, should, as the Master of the Rolls has characteristically said, "temper justice with mercy". But is a mother's contribution to our society so insignificant that when she is threatened with the loss of her home her only hope is to reply upon the mercy of the court? Should she not be protected by Statute law? Undoubtedly the noble and learned Law Lords were very concerned with the outcome of this case, and I am honoured to find the noble and learned Lord, Lord Cohen, here. He has been sitting here for many hours, tireless it seems, and I am delighted to tell the House what he said in regard to this case, because he was one of the Law Lords. He said: I arrive at this conclusion with some reluctance for I recognise that the Respondent is an admittedly wronged and deserted wife … the existing law I think is in an unsatisfactory state, particularly as regards the position of the deserted wife and of third parties.

The noble and learned Lord, Lord Upjohn, said on this occasion: … a wife does not remain lawfully in the matrimonial home by leave or licence of her husband as the owner of the property. She remains there because as a result of the status of marriage it is her right and duty so to do, and if her husband fails in his duty to remain there it cannot affect her right to do so. She is not a trespasser, she is not a licensee of her husband, she is lawfully there as a wife… Then the noble and learned Lord, Lord Upjohn, said that: … it is desirable that the recommendations of the Royal Commission on this subject should receive some further consideration.

May I just remind your Lordships of what the Royal Commission on Marriage and Divorce said, under the heading "Provision for protecting a spouse who has been left in occupation of the matrimonial home "? I must remind the House that this was written when what was known as the Denning Convention, which permits the deserted wife to remain in the home, was still operating, but that has been out of date from last week. The Royal Commission said (paragraph 664): We think that it has been right to afford this protection to a deserted wife, to allow her to keep a roof over her head; it would be shocking to contemplate that a husband could put his wife and children into the street so that he could himself return to live in the home, perhaps with another woman. The law has, however, been criticised on the ground that it leaves to some extent uncertain the position both of a wife and of third parties. Moreover, the law is not firmly settled since it does not as yet rest upon a decision of the House of Lords. For these reasons, we consider that it would be preferable to lay down in a statute the circumstances in which a wife should have a right to remain in the matrimonial home.

Finally, may I draw the attention of the House to what the United Nations Commission on the Status of Women said? They made a recommendation, which has been adopted by the Economic and Social Council, which includes the provision of statutory matrimonial regimes affording women equal rights with respect to separate or common property during marriage and equitable sharing of property at dissolution. Throughout the long range of our history, mankind has been slowly and painfully finding its way towards discovery of itself. But change and invention in the woman's world has always lagged behind. I believe that marriage should be looked upon as an equal partnership. So far Britain has failed to realise the full value of the wife's part in making a home: otherwise her claim to a fair share of the family income and community of property would have been secured as a matter of common justice long ago.

8.32 p.m.

LORD COHEN

My Lords, I do not think that in a debate, if it can be so called, which has arisen on a Question, it would be right for me to go into this matter in detail. I should like to thank the noble Baroness for her reference to me, and I would say just two things. First, I think that it might be wrong to accept as a full statement of the law the noble Lady's statement about the position where there was a transfer of the home to a mistress for a trifling sum. I think that the noble and learned Lord the Lord Chancellor will probably agree that it is not ouside the power of the law to deal with that situation. I cannot recall to mind the name of the case which may be cited.

Secondly, I agree with the noble Baroness that this is a matter which requires further consideration. When I added what I did, I had in mind the Law Commissions Bill, which we were discussing. I thought that this might well be a fit matter for the Commission. I appreciate that the noble Baroness desires, if possible, to proceed by a Private Member's Bill, but I want to put in a caution. It is not so easy as it sounds. There are cases, for instance, of constructive desertion. For example, a lady might allege that she had been deserted, only for it to be proved, when the case came on in the Divorce Court, that the husband had not deserted her but had been driven out of the house by her behaviour. A great many things have to be considered. When I added those remarks, I had in mind partly what appeared in the Report which the noble Lady cited, and partly a suggestion made by Lord Justice Russell in the Court of Appeal.

Therefore, while I hope that the Government will find it possible to afford greater protection than our Judgment leaves with a truly deserted wife, it is a matter which requires careful consideration. I hope that your Lordships will forgive me for this short intervention, which I make because the noble Baroness referred to me in her remarks.

8.35 p.m.

THE LORD CHANCELLOR

My Lords, the Question which the noble Baroness has raised is one of importance to a large number of our people. I am as sorry, as I am sure she must be, that, worn out by the exertions of the day, out of 1,007 Members of your Lordships' House only 7, and not the 1,000, are here to hear the subject discussed.

The actual Question which the noble Baroness has asked is: To ask Her Majesty's Government whether in view of the judgment of this House concerning the deserted wife's 'equity' to remain in occupation of the matrimonial home, they will introduce remedial legislation, especially as three of the Law Lords stated that the result was unsatisfactory and required the attention of Parliament. If I may start by being depressing, the answer to the Question is, No, they are not doing, so. In the first place, they do not know anything about it. This decision of your Lordships' House was made only on the 13th of this month and was reported on the 14th. The process of a Government forming a view is necessarily one of a little length. To start with, there is a particular Minister concerned, who has first to form his view. If he forms a view in favour of legislation, it would then be for him to prepare a paper and put it before his colleagues. This has to go through one or more Committees and in the event of disagreement, I suppose, to the Cabinet. The idea that Governments, who all the time have a hundred legislative proposals at some stage or another before them, can form a quick view, while it may be desirable, is, I am afraid, not realistic.

Secondly, if they had considered the matter, which they have not, I think it is highly unlikely—and that is an understatement—that there could be legislation this Session, because the Government are already committed to more legislation in this Session than they can get enacted, and the position in next Session is one of some difficulty already. But, of course, there is a certain amount of time for Private Members' Bills, and this the noble Baroness might feel would be a proper case for a Private Member's Bill.

For my part, I entirely agree with her that the time is coming when we ought to reconsider the whole question of property law between spouses. In most Western democracies there is some measure of community of goods, on the basis that where there is a home and children somebody has to look after them. If the wife did not do it, the husband would have to do it or pay somebody to do it. It is because in most countries it is ordinarily the wife who looks after the home and children, that the husband is free to go and earn a living for them both which he could not do if he had to do half the looking after of the house and children. If that is so, or if they both be working, it is only right that they should share their property and income during marriage.

I do not know whether our people would agree with this, though I think that a considerable number of people in this country would think that it ought to be the law, that at least the matrimonial home and its contents should belong to both. So often the wife may be at work, too. Who happens to deal with the mortgage instalments and hire purchase is very much a matter between them. I think that most ordinary married people do in fact operate on a sort of communityof-goods principle. Sometimes the husband hands over the money for the housekeeping or, as in parts of Wales, hands over everything he earns to his wife and she gives him back something for himself. It is, I think, time that we began to think about what the property rights of married people ought to be.

However, if one is to deal with the immediate problem, it would seem to me that this would be a suitable thing for a Private Member's Bill. I think everybody in the country would agree that there was nothing contrary to common sense and justice in the law that was laid down by the Court of Appeal in Bendall v. McWhirter, because if a wife is deserted, while a husband would not ordinarily get an order to turn her out of the house it is not right that he should nevertheless be able to do that by the expedient of selling the house to somebody else, and for the purchaser to get her out. Because if she has children, whatever she may get by way of maintenance is not the same thing as having the matrimonial home. I should have thought that there would be general agreement that, in substance, the decision of the Court of Appeal in Bendall v. McWhirter ought to be restored.

There is one difficulty, however, about that, and it is in relation to third parties. I would suggest to the noble Baroness that if we are to restore the position to the substance of what it was, it would be better to restore it to the recommendations contained in paragraph 698 of the Royal Commission's Report, because that safeguards the position of the third party, which was, I think, a weakness of the position under the previous decision of the Court of Appeal. This recommendation is that in such a case the court should be able to grant the wife an injunction against the husband from disposing of any interest in the home or its contents, and that that order should be capable of registration as a land charge. This means that the potential purchaser's position will be safeguarded, because he can tell where he is. The order will be on the Land Charges Register, and he will know that this is a protected wife. Otherwise, we were slowly getting into the position, under Bendall v. McWhirter, where, if you wanted to buy a house with the life savings of your family, when you were shown round by the woman you ought to say to her: "Are you a deserted wife?—because, if so, then I may be in difficulty." I would suggest to the noble Lady that this would be a very good case for a Private Member's Bill.

But I agree with the noble and learned Lord, Lord Cohen, that this is not a very simple subject, and the noble Baroness ought to get advice, particularly for this reason: that if it is in the right legal form, then I can see no reason for the Government to oppose it, and they might be very well disposed towards it; whereas if it is in the wrong legal form we shall get into difficulties.

It is also a matter for consideration whether, apart from paragraph 698, such a Bill should or should not include what is recommended in paragraph 697 of the Report. But these are technical matters. I do not know whether the noble and learned Lord, Lord Cohen, or even the noble and learned Lord, Lord Hodson, would be interested in this question, but I am sure the noble Baroness would be well advised to obtain help on the technical wording of such a Bill. But, apart from that, speaking personally, I am sympathetic; indeed, if your Lordships' House had been other than your Lordships' House, when I saw the hour and the exhaustion of those present and their small numbers, I should have said: "Why do we not call it a day? Come round to my room and let us talk about it." But that would have been a grossly irregular observation to make in your Lordships' House, and I thought it right to say what I have said.

So that, while I am afraid the answer is, "No; I cannot hold out any immediate hope of Government legislation", I am personally sympathetic towards this idea; and I am sure that as many Members of the House as are here will agree that we are grateful to the noble Lady for having raised a question which clearly affects large numbers of our people.

BARONESS SUMMERSKILL

My Lords, may I thank the noble and learned Lord who sits on the Woolsack for what he has said? He has given me much more than I hoped for. He has blessed a Private Member's Bill, and I hope to have the pleasure of drafting one that will satisfy him in every technical detail as soon as possible.

House adjourned at a quarter before nine o'clock.